Law Web: When it is not mandatory for court to frame issues?

There was no occasion to frame other issues since the

appellant therein had not filed any other pleading or written

statement or other documents so as to raise other issues. In any

case the court was not bound to consider any other issue at the

preliminary stage. The court has proceeded to decide the issue

on the basis of facts that had been stated in the application and

the reply of the respondent on merits. The respondent did not

at any stage oppose framing of such issue and the only other

question is whether the parties were denied an opportunity to

lead the evidence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.72 OF 2014

WITH

CIVIL APPLICATION NO.77 OF 2014

Mr.Ravindra Harshad Parmar,

V/s.

Mrs. Dimple Ravindra Parmar,

CORAM : SMT V.K.TAHILRAMAMANI

AND A.K.MENON, JJ.

PRONOUNCED ON : 11TH DECEMBER, 2014.

Citation;2015(2) MHLJ 821

1. By the present appeal, the appellant challenges the

order dated 14th June, 2013 passed by the Family Court Pune in

a petition filed by the Respondent-wife seeking divorce under the

provisions of Section 13(1)(ia), 25 & 26 of the Hindu Marriage

Act, 1955 (the Act). The impugned order is passed on an

application challenging the territorial jurisdiction of the Family

Court, Pune to try the petition seeking divorce filed by the

Respondent under section 13(1)(ia), 25 & 26 of the Act. While

the main petition is filed by the Respondent-wife on 5th

November, 2012, the present application is taken out on 22nd

March, 2013 seeking framing of a preliminary issue of jurisdiction

of the Family Court and dismissal of the petition for want of

proper jurisdiction and in the alternative for return of the petition

for filing before the appropriate Court in New Jersey, USA.

2. The facts in brief leading to the present application

are:-

The Appellant (original Respondent) immigrated to

U.S.A. in the year 1994 and obtained a green card. The Appellant

became a naturalised US citizen. The marriage between him and

the Respondent was solemnized on 21st November, 2002. The

marriage was registered on the same day and the Appellant

returned to U.S. The Respondent went to U.S.A. in the year 2004.

The Respondent immigrated to the U.S. And after her permanent

resident card (green card) was processed, she lived with the

Appellant in Pennsylvania. In September, 2004, the Respondent

took up employment with McCarter Theatre in Princetown, New

Jersey.

3. The Respondent started her web and multimedia

design business sometime in 2005. In October, 2005, the

Appellant and the Respondent jointly purchased another town

home in Pennington, New Jersey. In December, 2007, the

Respondent acquired US citizenship. In July, 2008, the Appellant

and Respondent purchased a new house in Manapalan, NJ, which

was the marital home of the parties. On 29th October, 2008 the

Respondent gave birth to son Reyansh. The petition discloses

that the Respondent came to India along with her son Reyansh to

attend marriage of the Respondent's sister in March, 2012. The

Appellant also visited India on 13th April, 2012 and returned to

U.S. alone. The Respondent did not return to the U.S. thereafter.

4. On 5th November, 2012 the Respondent filed the

petition in the Family Court, Pune. On 21st February, 2013 the

Appellant-husband filed the proceedings in the Court of New

Jersey. It transpires that on 22nd March, 2013 and 16th April,

2013, the Court in New Jersey issued certain directions as

regards the custody of the child holding that the New Jersey

Court had jurisdiction over the issue of custody of the child while

enforcing its child jurisdiction. In the meanwhile, the Appellant

filed an application on 22nd March, 2013 challenging the

jurisdiction of the Indian Court under section 9-A of the Civil

Procedure Code. The Respondent filed her say to the application

on 16th April, 2013 and by an order dated 14th June, 2013, the

learned Judge of the Family Court, Pune dismissed the

application. In the application (Exhibit-23), the Appellant

submitted that the Respondent had filed instant proceedings

surreptitiously and sought permanent and legal custody of the

son Reyansh. That the Appellant was compelled to challenge

the territorial jurisdiction of the Family Court on the basis of

being U.S. citizen and being domiciled in U.S. prior to the

marriage. The Appellant contends that the Respondent went to

New Jersey, USA, her matrimonial home since 2004 where she

has been gainfully employed as a graphic and web designer.

She of her own accord had applied for U.S. citizenship on 8th

December, 2007 and that it was done with the intention to reside

permanently in U.S. It is also the contended that the Family

Court had no jurisdiction to try the petition as the Respondent

and the minor son Reyansh were US citizens. It is further

contended that the Appellant and the Respondent last resided in

New Jersey, U.S. and, therefore, only the Court in New Jersey,

U.S.A. will have jurisdiction to entertain and try the petition.

5. The application was opposed by the Respondent vide

her reply dated 16th April, 2013 in which the Respondent

contended that a person can be a citizen of any country but may

be domiciled in some other country and that the application does

not consider 19(iii) of the Act or the concept of domicile. Initially

the law was that domicile of a wife is that of domicile of the

husband. The Respondent states that section 19(iii) of the Act

entitles her to file the present petition in Pune. Lastly, she

contends that prior to marriage, she was a resident of India. She

was married in India as per Hindu religious rites and that after

going to U.S. she had returned to Pune, India on 23rd March,

2012. She has filed the petition on 5th November, 2011 i.e. 8

months after returning to India. She contended that after her

sisters marriage, she informed the Appellant of her decision to

permanently stay at Pune and not go back to U.S. and that she

was domiciled in Pune and she had enrolled her son in a school

at Pune. The Respondent contends that the Appellant was

aware of the fact that she wanted to remain back in Pune ever

since she did not return back and were talking to each other and

communicating through e-mails. The Appellant was aware that

the Respondent had no intention of returning since the

Respondent secured admission for the child in a School at Pune

and had been talking frequently about this fact. Accordingly,

the Respondent opposed the application. The learned Judge of

the Family Court vide the impugned order rejected the

application. Neither party sought to lead oral evidence.

6. Mr. Muchhala, the learned Senior counsel appearing on

behalf of the appellant submitted that the appellant was not

domiciled in India at the time of marriage nor he had ever

submitted to the provisions of Act and as a consequence, the

provisions of the Hindu Marriage Act cannot apply to him. He

further submitted that on the basis of material on record, it is

submitted that on the date of marriage neither the Appellant or

the Respondent were domiciled in India and, therefore, the Hindu

Marriage Act cannot apply. Mr. Muchhala pressed into service

the concept of intended domicile and submitted that the time

when the marriage was fixed the respondent had already

contemplated moving to the United States with intention of

being domiciled there, pursuant to the marriage. According to

Mr. Muchhala once such intention is established she cannot take

advantage of the Hindu Marriage Act. He submitted that

intended matrimonial home doctrine in Private International Law

could govern the residence rights and therefore she would be

subjected to law prevalent in United States on the basis of such

intended matrimonial home located only in United States. He

relied upon commentary of Cheshire, North & Fawcett Private

International Law Fourteenth Edition, Chapter 20 in support of

his contention. Thus, according to him the respondent having

decided to shift to United States and having demonstrated that

she intended to do so by actually following up and obtaining

citizenship of the United States by the said aforesaid doctrine

applies on all fours and it must be held that she had chosen to

be domiciled in United States and therefore voluntarily submitted

to the laws of United States. Having chosen to be domiciled in

the United States she also gave up her domicile in India. Mr.

Muchhala thus submitted that the Court at Pune had no

jurisdiction to try the matrimonial dispute. He further submitted

that although the respondent had filed a petition in Family Court

at Pune on 5th November, 2012 and on 6th November, 2012

exparte order came to be passed against the appellant, it was

communicated only to the appellant on 7th November, 2012.

The respondent has instituted appropriate proceedings in New

Jersey Court on 19th February, 2013 and on 21st February, 2013

the New Jersey Superior Court passed an order in favour of the

appellant directed the respondent to bring child Reyansh to the

United States of America Embassy or Consulate in Mumbai, India

within seven days of execution of the order and to surrender

United States Passport and OCI card of the child and that child

Reyansh be not removed from custody of the appellant till further

orders of New Jersey Court.

7. On 25th February, 2013 the respondent filed an

application in the Family Court at Pune seeking protection

against the said order. On 1st March, 2013 the Family Court at

Pune passed an order and prevented implementation of the order

of removal of Reyansh from India. It is thereafter that on 21st

March, 2013 that the appellant filed an application challenging

the jurisdiction of the Family Court at Pune under section 12 of

Hindu Marriage Act read with section 9A read with section 151 of

the Code.

8. Meanwhile the respondent did not appear in the Court

at United States and in April 2014 certain injunctions were

passed against the respondent. At the same time the respondent

opposed the appellant's application on the question of

jurisdiction which application came to be dismissed on 14th June,

2013 holding that it has jurisdiction to entertain the family

dispute.

9. Thereafter, on 14th January, 2014 New Jersey Court

passed a final decree of divorce, child custody and distribution of

the matrimonial property. It is the appellant's case that when

the respondent contends that she has changed her domicile

from that of her husband then burden of proof of change of

domicile is on the respondent. It is further submitted that the

following facts demonstrate that the respondent had no intention

to change the domicile :

(a) That the respondent has not surrendered her United States

citizenship.

(b) That she has not surrendered United States passport.

and that the respondent continued with employment of

McCarter Theatre in Princetown, New Jersey even after shifting to

India till September 2013 when she finally quit the said job.

It is the appellant's contention that the family Court

was obliged to frame and settle the issue indicating issues of law

and facts and casting burden of proof upon each of the parties

that failure to frame such an issue have resulted in miscarriage

of justice. This is gravamen of the appellant's challenge.

10. On intended domicile :

Mr. Muchhala submitted that basic presumption is that

at the time of marriage the respondent had chosen to be

governed by the law of husband's domicile, namely, United

States and this presumption could have been rebutted by the

respondent but in the present set of facts it could be inferred that

the parties at the time of marriage intended to establish their

home in certain country and they did establish a home in the

United States in reasonable time. Mr. Muchhala states that test

stood completely satisfied in respect of the parties since the

respondent-wife proceeded to obtain green card, took up

employment and residence in United States, acquired property

jointly with appellant in the United States and evidently took up

citizenship in United States.

11. In support of his contention Mr. Muchhala sought to

place reliance upon the provisions of the Family Court Act, 1984

that section (1) declares that it extends to the whole of India

except the State of Jammu and Kashmir and therefore was

inapplicable to the appellant who was not subject to the

provisions of the said Act being domiciled in the United States

of America before and after the marriage. He also relied upon

section (1) of the Hindu Marriage Act to contend and stressed

upon the fact that section (1) sub-clause (2) specifically applies

to the whole of India except to the State of Jammu and Kashmir

and applies also to the Hindus domiciled in the territories of the

Act and extends to those who are outside territory meaning

thereby that the Act would apply to the Hindus who are

domiciled in India except the Jammu and Kashmir, even if such

Hindu persons were residing outside territorial limits of India. He

submitted that the words “domiciled in India” which was

originally appearing in the Act had been altered to read as

“domiciled in the territories to which this Act extends” makes the

provision clear so that it applies to all the Hindus with such

domicile who may be for the time being outside the Indian

territory. He submitted that by virtue of these provisions it was

more then evident that the appellant cannot be subjected to the

provisions of the said Act by virtue of his not being domiciled

within territories concerned and in view of having expressly

claimed to be domiciled in United States and since the

respondent has no time questioned husband's domicile.

12. Mr. Muchhala then relied upon decision of the

Supreme Court in case of Sondur Gopal Vs. Sondur Rajni

(2006) 3 AIR Bom.487 in support of his contention that Hindu

Marriage Act would apply to the Hindus residing outside India but

having domicile in India. He submitted that in order to save extra

territorial application of the Act domicile in India is mandatory

[In Sondur Vs. Sondur]. The Supreme Court held that right to

change domicile is available to any person not legally dependent

and such person can acquire domicile of choice by residing in

country in that country indefinitely and that person who alleges

domicile has to prove it. That intention of changing domicile and

continuing to adopt that changed domicile is in the mind of a

person and can be inferred from any act, event or circumstance

in the life of such person. Applying this principle to the present

set of facts, it is seen that the respondent has claimed change of

domicile and has decided to be domiciled in Pune, India, has

taken up employment in Pune and has secured admission of

minor child Reyansh in school at Pune. This fact is also known to

the appellant who has corresponded that the respondent has

inquired about plans with the appellant and Reyansh's future

schooling. Thus, it is the respondent's case that she is domiciled

in India.

13. Mr. Muchhala then relied upon the decision of the

Supreme Court in Sankaran Govindan Vs. Lakshmi Bharathi

and Others AIR 1974 SC 1764 and submitted that domicile is

mixed question of fact and law and that to establish domicile

there must be present intention of permanent residence thereby

meaning that so far as mind of a person at the relevant time was

concerned, he possessed requisite intention that at the relevant

time varies with nature of inquiry. He relied upon paragraph 33

of the said judgment in support of his contention that it is

impossible to lay down any positive rule with respect to the

evidence necessary to prove intention. All that can be said is

that every conceivable event and incident in a man's life is a

relevant and admissible indication of his state of mind. That it

may be necessary to examine the history of his life with the most

scrupulous care and to resort even to hearsay evidence where

the question concerns the domicile of a person. These

observations of the Supreme Court were involved in a case

where the parties were seeking to establish domicile of person

(since deceased) which he possessed in the lifetime.

14. Mr. Muchhala then relied upon the judgment of the

Single Judge of this Court in Kranti Mohan Guruprasad

Mehra and Anr. Vs. Fatehchand Vasuram Behal AIR 1982

Bombay 263 and submitted that the decision on the objection

to jurisdiction of Court is to be tried as preliminary issue and

determination of such issue and the question of interim relief

must follow distinct procedures. He submitted that it may be

permissible for the court to adopt a composite hearing of the

said preliminary issue and the interim relief and even

determination of the preliminary issue at such hearing and

making composite order, however, adjudication of preliminary

issue would precede the decision of the interim application.

That the scheme of section 9A of the Civil Procedure Code

unmistakably indicates that the court is expected to determine

the objection to jurisdiction as an issue in the suit which should

be treated as a preliminary issue and having regard to the

concept of the pleading, that it should be decided after giving

the parties a full opportunity to lead all necessary material and

evidence as they would have done when the issue was framed at

the trial and lastly the determination of such an issue even at

that stage would get a label of finality insofar as that

proceedings and the suit is concerned.

15. The preliminary issue would therefore not be required

to be re-heard in the second round at trial. Mr. Muchhala pressed

this judgment into service to buttress his argument that in the

present case the Court at Pune had not allowed the parties to

lead evidence and that it had failed to frame the issues.

16. Mr. Muchhala then relied upon the decision of the

Single Judge of this Court in Rev. Dr.Ignatius Dcunha and

Anr. vs. Rev.Father Denish Chittarajan Kamath 1992 (1)

Bom.C.R. 647 and submitted that the nature of the evidence

which a party would be required to place before the Court when

the Court is considering a question of granting or refusing interim

relief under Order 39 would be totally different from the nature

of the evidence which it would be required to place before the

Court when the Court is to consider issue of jurisdiction and that

issue was required to be framed for the reasons that the parties

must be made aware as to what are questions to be decided by

the Court so that the parties may submit evidence in the light of

these issues and the burden is on either parties to prove. In

that case the issue of jurisdiction has not been framed at all and

it was held that merely asking the counsel to address the court

on the point will not be a decision on the issue as is required by

the mandate of section 9-A of the Code of Civil Procedure and

therefore the Court held that there is no compliance to the

provisions of section 9-A.

17. Mr. Muchhala then relied upon the judgment of this

Court in Meher Singh vs. Deepak Sawhny & Anr. 1991 (1)

Bom.C.R. 107 wherein the Division Bench was considering the

preliminary issue of jurisdiction and while deciding the

preliminary issue the parties were given an opportunity to lead

evidence. Before the single Judge it was argued that when such

issue is raised the court may permit the parties to lead evidence

since the issue has to be tried and adjudicated finally. It was

held that section 9-A was added with specific object to see that

the objection with regard to jurisdiction of the court is decided

as the preliminary issue and the parties may be given an

opportunity to lead evidence so that to arrive at a finding on the

preliminary issue the parties do not have to await the outcome of

the issue.

18. Mr. Muchhala then relied upon the decision of this

Court in Mukund Ltd. vs. Mumbai International Airport &

Ors. 2011 (5) Bom.C.R.456 in support of his submission. In

the said judgment the Court held that it is not open to the

defendant, having raised objection to the jurisdiction of the Court

at the hearing of application for interim relief, to obviate

adjudication of the Court upon that issue merely by postulating

that the objection is not pressed for purpose of interim

application. The objection to jurisdiction under section 9A is

required to be determined not only for the purpose of such a

motion but objection is to jurisdiction of the Court to entertain

the suit itself and once raised objection must be decided as a

preliminary issue. The provisions of section 9-A cannot be

utilized as a matter of litigational strategy by the defendant or,

for that matter, by the plaintiff for depending upon whether an

ad-interim order has or has not been passed by the Court.

Once the objection is raised as a preliminary issue before the

application for interim relief is taken up, it must be decided as a

preliminary issue. The provision was intended to prevent abuse

resulting in a situation where an injunction was granted without

going into question of jurisdiction.

19. Mr. Muchhala then relied upon the decision of the

Supreme Court in Makhan Lal Bangal vs. Manas Bhunia

and Others 2000 (1) Cal.L.J. 437 and submitted that an

omission to frame proper issues may be a ground for remanding

the case for retrial subject to prejudice having been shown to

have resulted, by the omission. The object of an issue is to tie

down the evidence on a particular question so that there is no

doubt on what the dispute is.

20. Mr. Muchhala then relied upon the decision of the

Supreme Court in Y.Narsimha Rao and Others and Y.

Venkata Lakshmi and Anr. (1991) 3 SCC 451 wherein the

Apex Court held that the Courts in India have so far tried to

follow the English Rules of Private International Law whether

common law rules or statutory rules but further observed that

marriage which took place in this country can only be customary

law in force in this country.

21. Mr. Muchhala once again laid stress on the decision of

this Court in Sondur Gopal Vs Sondur Rajni and in particular

paragraph 10.12 which observed that in the Private International

law until 1974, the rule was that the domicile of a husband was

communicated to his wife immediately on marriage and it was

necessarily and in inevitably retained by her for the duration of

the marriage. This rule was criticised as “the last barbarous relic

of a wife's servitude” and was abolished by section 1 of the

Domicile and Matrimonial Proceedings Act, 1973, and after

1.1.1974 it was laid down that domicile of married woman as at

any time shall on or after 1.1.1974 shall, instead of being the

same as her husband’s by virtue only of marriage, be

ascertained by reference to some factors as in the case of

individual capable of having an independent domicile.

22. Mr. Sarwate, learned Advocate for the respondent

relied upon the decision of this Court in case of Dr. Madhusudan

alias Amod Dalvi vs. Dr. Rajlaxmi Walavalkar to which one of us

(Smt.V.K.Tahilramani, J) was a party and submitted that any

application moved under the Hindu Marriage Act could be moved

in the court having jurisdiction over the place of residence of

minor. He then submitted that the parties were married under

the Hindu laws and the Hindu Marriage Act would apply and

naturally the provisions of Hindu Marriage Act with regard to

jurisdiction of the court would come into play and continue to

apply as long as marriage exists as even for dissolution of

marriage. Therefore, it was submitted that system of law which

would govern a marriage should remain constant and cannot

change with vagaries/whims of the parties to the marriage. In

that case the Court had occasion to consider Cheshire and North

on Private International law wherein it has been recognised that

if the domicile is to be determined on the basis of when

proceedings commence then every petition filed by the wife

whose husband moves from one country to another for the

purpose and claim domicile there, would be frustrated by

changing his domicile even between the presentation of petition

or during hearing of the case. Mr.Sarwate urged as set out in

the judgment, that it would be against public policy to take

different view. He submitted that the parties being Hindus if

the marriage is being solemnized by Hindu Vedic rites in Mumbai,

India then impliedly the appellant has submitted to jurisdiction

of the court in Mumbai and cannot escape provisions of the Act

citing his domicile in United States. According to him the

submission of Mr.Muchhala based on the concept of intended

domicile has no application in the instant case. He submitted

that “domicile of origin” is always present in the background

waiting to be revived and the conduct of person would show that

he has reverted to “domicile of origin”. He submitted that

conduct of the respondent in the present case by admitting the

child to school and taking up employment in Pune clearly

evidenced the intention to revert to “domicile of origin” i.e. India.

23. Mr.Sarwate then relied upon decision of this Court in

Family Court Appeal No.237 of 2013 dated 20th February, 2014

to which one of us (Smt.V.K.Tahilramani, J.) was a party, where

the question as to the jurisdiction of the Family Court in India

arose, to try the matter involving a foreign citizen who was

domiciled outside the Indian territory. He referred to paragraphs

18 and 20 of the said judgment in support of his submission that

the appellant admittedly being a Hindu and having solemnised

the marriage by Hindu Vedic rites in Pune, India has submitted

himself to the jurisdiction to this court and having married in

India as per the provisions of the Hindu Marriage Act, the

appellant cannot avoid being subjected to the jurisdiction of this

Court by setting up issue of domicile.

24. In that case, as in the present, the intention of the

appellant to return to his roots was evidenced from the fact that

he was owner of the immovable property in Mumbai bought in

the name of himself and parents of the respondents and his

domicile of origin stuck to him. He submitted that both the

parties being United States citizens did not alter the position of

the appellant, the respondent unequivocally has displayed her

intention to be domiciled in India. He submitted that when the

wife was given right to adopt legal proceedings in India by

virtue of section 19(iii), such provision cannot be defeated by

raising technical plea on account of foreign citizenship of the

husband and domicile in United States notwithstanding the

respondent has in that behalf opted for domicile alongwith the

appellant. The domicile and citizenship of opposite parties is

immaterial since the marriage was solemnised in India as per

Hindu Marriage Act and coupled with the fact that the respondent

himself owns the property in Pune albeit jointly with his parents.

25. Mr.Sarwate then relied upon the judgment in the

decision of Y.Narasimha Rao (supra) and relied upon the

observations in paragraph 13 and 21 and submitted that the

court had laid down that protection of women was of utmost

importance. The Supreme Court further held that the parties

ought to know their rights and when they marry under a

particular law, they cannot be heard to make a grievance about it

at later stage or bypass it by subterfuge as in that case. The

Apex Court was adverting to the fact that domicile of the wife no

longer follows that of her husband.

26. Mr.Sarwate further submitted that it is not necessary

that a formal issue be framed if the issue itself was heard and

decided by the Family Court. According to him under section

10(3) the Family Court had power to lay down its own procedure

with a view to arrive at the truth of facts alleged by one party

and denied by the other notwithstanding the provisions of

section 10(1) that provides that the provisions of Code of Civil

Procedure and any other law for the time being in force shall

apply to the suits and proceedings before the Family Court.

27. Mr.Sarwate further submitted that marriage between

the parties was registered under the provisions of the

Maharashtra Regulations of Marriage Bureaus and Registration of

Marriage Act, 1998 and relied upon the certificate of registration

of marriage issued under section 6(1)(e) of the said Act. The

certificate records that the marriage between the appellant and

respondent took place at Arya Samaj. Section 6 of the Act enjoins

upon the husband a duty to submit memorandum for registration

of marriage on solemnisation of the marriage.

28. In rejoinder Mr.Muchhala contended that the fact of

marriage is not in dispute, however, according to Mr.Muchhala

the marriage did not take place in accordance with the Hindu

Marriage Act. He, therefore, states that the Hindu Marriage Act

does not apply. He submitted that under section (1) of the

Hindu Marriage Act it applies to the Hindus domiciled in whole of

India except Jammu and Kashmir and to those who are domiciled

within Indian territory but who are outside the said territory.

Since the appellant is not domiciled in Indian territory the act

does not apply to him. To query from the court as to effect of

Section 2 namely applicability of the Act to any person who is

Hindu by religion, Mr.Muchhala submitted that section 2 would

not apply since his client was not domiciled within the territory to

which the Act applies as contemplated in Section 1. In a nutshell

Mr.Muchhala's submission is that since the appellant is domiciled

in the United States outside the Indian territory at all material

times has not married under the Hindu rites he is not subject to

the provisions of the Hindu Marriage Act.

29. Having considered the rival contentions in our view

the following questions arise :

Firstly, whether the trial Court could have decided

the issue of jurisdiction in the manner done in the present case

or whether it should have framed a formal issue and thereafter

proceeded to hear the application Exhibit-23. Secondly,

whether the concept of intended domicile would prevent the

respondent from initiating the proceedings in India. Thirdly,

whether the marriage between the parties was solemnized

according to Hindu rites. In other words, whether it was

according to the provisions of Hindu Marriage Act and mere

registration under the Act does not entail applicability of the

Hindu Marriage Act to the appellant husband.

30. We propose to address the third question first,

namely, applicability of the Hindu Marriage Act. The facts as

appearing from the record reveals that marriage between the

parties was solemnized on 26th November, 2002 in Mumbai.

The fact of the marriage being performed in accordance with the

Hindu rites is really non issue inasmuch as the order Exhibit-5 in

Petition No.B-16 records that marriage between the petitioner

and the respondent took place in accordance with Hindu Vedic

rites. This finding is reiterated in the said order. This finding

has not been challenged by the appellant either in the Family

Court or in this Court. The appellant has filed an application

seeking the interim relief being Civil Application No.165 of 2014

in the above appeal. By consent the order has been passed on

30th May, 2014 Exhibit-B to the said civil application. In the

order of the Family Court dated 27.12.2013, there is no grievance

in the said application (or elsewhere) alluding to any dispute

apropos the fact that the marriage was performed in accordance

with the Hindu Vedic rites applicability of the Hindu Marriage Act.

None of the grounds of appeal seek to fault the impugned order

on the basis of non applicability of the Hindu Marriage Act by

reason that the marriage was not in accordance with the Hindu

rites. A perusal of the Hindu Marriage Act, 1955 reveals

that section 5 provides for the conditions of Hindu marriage.

Section 5 is set out below for case and reference :

"5. Conditions for a Hindu marriage. A marriage

may be solemnized between any two Hindus, if the

following conditions are fulfilled, namely :-

(i) neither party has a spouse living at the time of

the marriage;

(ii) at the time of the marriage, neither party :-

(a) is incapable of giving a valid consent to it in

consequence of unsoundness of mind; or

(b) though capable of giving a valid consent,

has been suffering from mental disorder of

such a kind or to such an extent as to be unfit

for marriage and the procreation of children; or

insanity

(iii) the bridegroom has completed the age of

[twenty-one years] and the bride, the age of

[eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of

prohibited relationship, unless the custom or usage

governing each of them permits of a marriage

between the two;

(v) the parties are not sapindas of each other, unless

the custom or usage governing each of them

permits of a marriage between the two."

31. Furthermore, in the application before the Family

Court made on behalf of the respondent under section 1(2) of

the Hindu Marriage Act, 1955 read with section 9-A read with

section 9 of the Code of Civil Procedure which seeks dismissal of

the proceedings, the respondent (appellant herein) pleaded as

under :

“The respondent states that he was a US citizen and

domiciled there prior to marriage. The marriage

between the petitioner and him was solemnized with

Hindu rites and rituals at Mumbai. Subsequent to

the marriage, the Petitioner went to New Jersey, USA

to her matrimonial home in 2004. The petitioner

since 2004 has been gainfully working in USA as a

graphic and web-designer. She on her own accord

applied for the US citizenship and subsequently on

8th on December, 2007 the Petitioner was granted

the US citizenship. This was done with an intention

to make US her permanent abode. Hence from

2004 for all practical purposes the Petitioner was

domiciled in USA …. …. …..”

In view of the admissions on oath it is established

beyond doubt that the marriage ceremony was in accordance

with the Hindu rites.

32. There cannot be dispute as both the parties are

Hindus at the time marriage and it is nobody's case that either of

them was disqualified by reason of non compliance of conditions

under section 5. In the present case, the evidence shows that

the marriage was performed at Arya Samaj. It is not the case of

the appellant that Arya Samaj wedding did not constitute a

Hindu marriage ceremony as contemplated under section 7 of

the Act. Once it is established that marriage between the

parties was performed as per Hindu rites, the Hindu Marriage

Act would apply by virtue of section 2(1)(a). Reliance is placed

by Mr.Muchhala, learned senior counsel for the appellant on

section 1 and section 1(2) and in particular territorial applicability

of the Act and at the material time the marriage did take place

within territory of India. The mere fact that the appellant was

domiciled at the time of marriage in the United States does not

take away applicability of the Act. The appellant is a Hindu, his

domicile of origin was Mumbai India, his domicile of choice was

the United States of America. He owns and continues to own

property in Mumbai and cannot be deemed to have given up his

domicile of origin. In our view the appellant satisfies the

requirement of being a Hindu person by birth and being a party

to marriage solemnized between him and the respondent, both

Hindus. In the facts and circumstances of the case we are of the

view that the Hindu Marriage Act does in fact apply.

33. Apropos the first question,we are unable to appreciate

this submission that the Family Court failed to formally

frame/settle the issues since there really was only one issue,

namely, whether or not the Family court had jurisdiction in the

facts of the case. We shall now consider the effect of section

9-A of the Code of Civil Procedure, 1908. Section 9-A is

reproduced below :

"Section 9-A. Where at the hearing of application

relating to interim relief in a suit, objection to

jurisdiction is taken, such issue to be decided by

the Court as a preliminary issue –

(1) Notwithstanding anything contained in this

Code or any other law for the time being in force, if,

at the hearing of any application for granting or

setting aside an order granting any interim relief,

whether by way of stay, injunction, appointment of

a receiver or otherwise, made in any suit, an

objection to the jurisdiction of the Court to

entertain such suit is taken by any of the parties to

the suit, the Court shall proceed to determine at

the hearing of such application the issue as to the

jurisdiction as a preliminary issue before granting

or setting aside the order granting the interim

relief. Any such application shall be heard and

disposed of by the Court as expeditiously as

possible and shall not in any case be adjourned to

the hearing of the suit.

This Maharashtra amendment requires the court to

determine at the hearing of any application for the interim

relief, the issue as to jurisdiction of Court as a preliminary issue

before granting any Interim order. The Court is mandated not

to adjourn such application to the hearing of suit. It is case of

the appellant that the Family Court in India has no jurisdiction to

entertain the petition for divorce and that correct forum is the

Court in United States. In fact the prayer in the application

Exhibit-23 which has led to the impugned order states that a

preliminary issue of jurisdiction be framed and decided and

that the interim application and interim relief granted may be

vacated. In the alternative, the appellant seeks an order that

the petition may be returned for presentation before the

appropriate jurisdiction, namely, New Jersey.

34. There was no occasion to frame other issues since the